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Soft-Power Triangulation for the Reclamation of a Prodigal Free Press

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Soft-Power Triangulation for the Reclamation of a Prodigal Free Press Brigham Young University Prelaw Review Volume 27 Article 9 4-1-2013 Soft-Power Triangulation for the Reclamation of a Prodigal Free Press Maren Mildenhall Follow this and additional works at: https://scholarsarchive.byu.edu/byuplr BYU ScholarsArchive Citation Mildenhall, Maren (2013) "Soft-Power Triangulation for the Reclamation of a Prodigal Free Press," Brigham Young University Prelaw Review: Vol. 27 , Article 9. Available at: https://scholarsarchive.byu.edu/byuplr/vol27/iss1/9 This Article is brought to you for free and open access by the Journals at BYU ScholarsArchive. It has been accepted for inclusion in Brigham Young University Prelaw Review by an authorized editor of BYU ScholarsArchive. For more information, please contact [email protected], [email protected]. SOFT-POWER TRIANGULATION FOR THE RECLAMATION OF A PRODIGAL FREE PRESS Maren Mildenhall1 “Our country, if you read the ‘Federalist Papers,’ is about dis- agreement. It’s about pitting faction against faction, divided govern- ment, checks and balances.” Jonah Goldberg hecks and balances form the backing within which American legal tradition is ensconced; ever-shifting, yet immovable by Cthe same token. The ink in every jot of new legislation is dif- fused with that of codes already penned: none arise without regard to where they fit in with the body of established code. No law is an island. All are designed to work in unison to safeguard the essential rights of the citizens they serve. That intricate interplay is in present jeopardy. The circumstances surrounding news coverage of the Zimmerman trial reveal an unprec- edented pervasiveness of new forms of media that poses a dramatic potential threat to the rights of those accused of serious crimes. Lay citizens in possession of a little knowledge may broadcast their mis- 1 Maren Mildenhall is a Humanities majoring, aspiring attorney whose respect for the law is paralleled only by her sense of inadequacy in pre- senting its nuances and appreciation of the reader’s patience. Her editors deserve more eloquent praise than she is equipped to render. Nevertheless, she ineloquently thanks both for their stellar suggestions and willingness to lighten an often overwhelming workload. More specifically, Nick Jones deserves kudos for his uncanny ability to pinpoint exactly what a given situation requires and to communicate it matter-of-factly. Likewise, this article may well have met its end in a puddle of nervous tears without Randall Raban’s unflagging reassurances that it would not. From the bot- tom of her heart, she thanks them both. 81 82 BYU PRELAW REVIEW, VOL. 27, 2013 interpretation of misplaced details to thousands of Twitter followers, Facebook friends, or enthusiasts of a given cause for an instant riot. The advent of social media has turned news reportage into a game of telephone in which any bias or inaccuracy is magnified by biased, inaccurate repetition by those with no obligation to be detached and objective. The broad discretion necessarily granted the news media to report the facts without flagrant contempt of factuality threatens conflict with the principle underlying Blackstone’s formulation of in- nocence until proof of guilt. By blackening the name of the accused with the power of widely dispersed suggestion, the pool from which an impartial jury may be drawn is narrowed dramatically. This, in turn, effectively diverts the course of a trial by appealing to that very mob whose tide must be stemmed. While the repercussions of this [mis]information explosion are not yet known, it is in the best inter- est of the American legal system that the federal government should establish some mainstay to preserve the rights of those accused of malfeasance which have come under probable threat. Although the framers of the Constitution could not possibly have foreseen such a remedy, the country needs a moderator of sorts; some agent to provide metacognition for the cogitating factions. Thus, it is proposed that a nonpartisan media watchdog agency comprised of well-established, well-reputed veteran newsmen be organized to es- tablish a set of straightforward, navigable guidelines governing the code of integrity by which news agencies (as well as the moderating agency, itself) should be held by the public (if not by the very law which guarantees its autonomy). Focusing on the Zimmerman trial, this article will explore the ways in which mass media jeopardizes the right to a fair trial. Its needless injection of high-profile cases with ideological tension calls for the use of soft power to accomplish what hard power cannot and must not. On March 19, 2012, NBC reporter Jeff Burnside issued a report to the effect that an armed neighborhood watchman named George Zimmerman had, after a period spent following 17-year-old Trayvon Martin down a residential sidewalk, slain said teenager because he SOFT-POweR TRIANGULATION FOR THE RecLAMATION OF A PRODIGAL FRee PRESS 83 suspected him of being a “black guy up to no good.”2 A recording of the gunman’s conversation with a 911 operator just prior to the accident, aired on Today on March 27, was doctored by Burnside to give the impression that Zimmerman had equated the state of being “up to no good” with the condition of being black and had chosen to follow Martin on that premise.3 That Zimmerman was let off on a plea of self-defense was thus crafted to serve as evidence of institutional racism in the Sanford, Florida police department. The general public raised a great hue and cry when Martin’s parents circulated a petition on Change.org calling for Zimmerman’s prosecution;4 and a Florida state attorney brought charges a month later. Numerous celebrities took to Twitter to publicly lament Martin’s demise and issue a call for racial justice.5 Reverent Al Sharpton cited Martin’s death as proof of systematic racism in the U.S.6 Representative Bobby Rush donned a hoodie and 2 NBC6 Zimmerman Edit Explanation, NBC6 (Apr. 25, 2012), http://www.nbcmiami.com/news/local/NBC6-Zimmerman-Edit- Explanation-148961305.html. 3 Jeff Burnside, NBC Miami WTVJ Reporter, Fired Over Edited George Zimmerman 911 Call, huFFington post (Apr. 25, 2012), http://www. huffingtonpost.com/2012/04/25/jeff-burnside-nbc-miami-wtvj-fired- george-zimmerman-edited_n_1453679.html. 4 Tracy Martin & Sabrina Fulton, Prosecute the Killer of Our Son, 17-Year- Old Trayvon Martin, CHANGE.ORG (Apr. 2012), http://www.change.org/ petitions/prosecute-the-killer-of-our-son-17-year-old-trayvon-martin. 5 Crystal Bell, Trayvon Martin Celebrity Reactions: Spike Lee, Sherri Shepherd React to Florida Teen’s Death, huFFington post (Mar. 23, 2012), http://www.huffingtonpost.com/2012/03/23/trayvon-martin- celebrity-reactions-shooting_n_1376065.html. 6 Al Sharpton at Trayvon Martin Rally: “We are Tired of Going to Jail for Nothing and Others Going Home for Something,” huFFington post, http://www.huffingtonpost.com/2012/03/23/al-sharpton-trayvon-martin- rally_n_1374975.html (last updated Mar. 23, 2012, 9:24 AM). 84 BYU PRELAW REVIEW, VOL. 27, 2013 sunglasses to speak to other House members about racial profiling.7 President Obama made the statement that his son would “look like Trayvon.”8 “Justice for Trayvon” is now the rallying cry of thousands who hold vigils,9 wear hoodies,10 and march11 in his memory. Before it even got off the ground, the Zimmerman case was racially and politically charged practically to the point of no return. Whether or not Zimmerman truly guilty is not the point being argued here. The profound trouble with the Zimmerman case and how it has been presented to the public is that pathos has been at the forefront of the issue from the very beginning. I. THE GROWTH OF THE POWER OF THE NEWS MEDIA Although constitutional rights are necessarily “coequal” in that no single right may be permitted to override or submerge another,”12 the rights protected under the First Amendment are explicitly given a 7 Lucy Madison, Dem Rep. Bobby Rush Escorted from House Floor for Wearing Hoodie in Honor of Trayvon Martin, CBS NEWS (Mar. 28, 2012), http://www.cbsnews.com/8301-503544_162-57405846-503544/dem-rep- bobby-rush-escorted-from-house-floor-for-wearing-hoodie-in-honor-of- trayvon-martin/. 8 Krissah Thompson & Scott Wilson, Obama on Trayvon Martin: “If I Had a Son, He’d Look like Trayvon,” WASH. POST (Mar. 23, 2012), http://www. washingtonpost.com/politics/obama-if-i-had-a-son-hed-look-like -trayvon/2012/03/23/gIQApKPpVS_story.html. 9 Stephen Hudak & Jon Busdeker, Trayvon Martin Vigils: “We are All About Peaceful Nonviolence,” ORLANDO SENTINEL (Mar. 25, 2012), http:// articles.orlandosentinel.com/2012-03-25/news/os-trayvon-martin-candle- light-vigil-20120325_1_candlelight-vigil-gated-community-skittles. 10 Justice FoR tRAyvon, http://www.justicefortrayvon.net/index.html (last visited Feb. 18, 2013). 11 Deepti Hajela, Trayvon Martin “Million Hoodie March” Draws Hun- dreds in New York City, huFFington post, (Mar. 21, 2012), http:// www.huffingtonpost.com/2012/03/21/trayvon-martin-million-hoodie- march_n_1371403.html. 12 State v. Simants, 236 N.W.2d 794 (1975). SOFT-POweR TRIANGULATION FOR THE RecLAMATION OF A PRODIGAL FRee PRESS 85 privileged position as the basis for the enjoyment of all other rights.13 The implications for a high-publicity criminal trial are obvious: con- flict between free press and the privacy of the accused is inevitable. However, the role of the press is sovereign and must not be abridged if the very fabric of freedom is to withstand. No matter how ineptly a journalist may cover a criminal trial, their responsibility to safe- guard the rights of a defendant very often stifle cries that they’re abusing their margin of error (unless their obvious dishonesty in- dicts them).
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